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COMMONWEALTH EX REL. FRANCES N. WASIOLEK v. RICHARD P. WASIOLEK (12/02/77)

decided: December 2, 1977.

COMMONWEALTH EX REL. FRANCES N. WASIOLEK, APPELLANT,
v.
RICHARD P. WASIOLEK



No. 222 October Term 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Family Division, D.R. No. 73-00396. Folio No. 0195126 A.

COUNSEL

Eleanor F. Itskowitz, Southampton, with her Michael J. Pepe, Jr., Philadelphia, for appellant.

Paul M. Lewis, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Jacobs, J., dissents.

Author: Hoffman

[ 251 Pa. Super. Page 110]

The instant case involves a serious question concerning the effect of the Equal Rights Amendment*fn1 (E.R.A.) on Pennsylvania law governing a parent's obligation of support: appellant, mother of three small children, has resisted seeking employment because she believes that the continued presence in the home is in the best interest of her children. The lower court held that the E.R.A. and recent Pennsylvania case law requires that appellant, formerly a secretary with a proven earning capacity, contribute to the support of her children. We agree with appellant and, therefore, reverse and remand.

Appellant and appellee were married on May 29, 1966. During the marriage, the couple had three children, Matthew, born November, 1966; Bartholomew, born September, 1968; and Jessica, born October, 1970. On March 5, 1973, after the parties separated, the court entered an order directing appellee to pay $45 per week for support of the three children. Following a divorce from appellee, appellant filed a petition to increase the support order. Between the original order and the date of the petition, appellee, an employee of the Philadelphia Department of Public Property, increased his income from $14,000 to $19,255 per annum.

On September 16, 1976, the lower court conducted a hearing on appellant's petition. Appellant presented estimated weekly expenses of $196.04. In addition, she expressed a desire to move from her parents' home in Havertown, Montgomery County, to an apartment of her own.

[ 251 Pa. Super. Page 111]

She explained that her seventy-four-year-old father suffered from a coronary condition and that her seventy-year-old mother had hypertension. Finally, she testified on cross-examination that she had been employed by Westinghouse Corporation as a secretary and had earned approximately $500 per month. She terminated her employment around the time of her marriage. When questioned about her current unemployed status, she responded as follows:

"A. I can't find any work with three children, because I have to be there when they go to school and be there when they come home.

"Q. Why do you have to be there when they go to school?

"A. Someone has to make their breakfast and get them ready for school, and get their books together, and see they are properly dressed ...


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